On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For reversal -- Justices Heher, Jacobs and Weintraub. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of the Superior Court, Appellate Division, which reversed a judgment of the County Court that affirmed an award of compensation to the petitioner-appellant for the death of her decedent husband.
Decedent, aged 50, was a bus driver of the respondent and had been in its employ for several years. There is no proof in this case of a prior coronary involvement. On February 2, 1952 he apparently left his home in good health around 9:00 o'clock and reported for work at the garage of the respondent at 20th Street and 16th Avenue, Newark, N.J.; took out his bus and went on his regular run at 9:58 A.M. Later, at 11:35 A.M., he called the dispatcher, Ulbrich, at the garage stating he was at the end of the run at Military Park and requested that he be relieved of duty because "he had been sweating and he had chills." The decedent did not ask for medical attention and volunteered no information beyond saying he was having chills and fever and wanted to be relieved at the end of the particular run he was then starting. He specifically asked to be relieved at 14th Avenue and 19th Street, which is the regular relief point. When he had driven to work that morning before reporting to the garage he had parked his own automobile between 19th and 20th Streets on 14th Avenue.
The dispatcher, at about 11:37 A.M., told the relief driver, Wayda, to relieve the decedent as requested. Wayda got his things together and then proceeded to the relief point,
a distance of some three blocks, and waited there for the arrival of the bus. He stated he got there about 11:50 and waited about five minutes for the bus, which finally came along and that he noticed the decedent Kream was sweating, which was unusual for that time of year, which was February. He testified, "I told Harry Kream to call up the company and have someone drive his car home," and that Kream answered "He did not want to be bothered * * * that he would go home himself." He left the bus and walked across the street to where his car was parked.
The decedent started to drive home in his own car and had gone several miles when he apparently lost consciousness and his car veered across the street out of control, ran into a hedge and came to a stop against a retaining wall. A direct eye witness, one Bloom, who was experienced in first aid, crawled into the car to give aid and noticed that Kream was bleeding from the mouth. He stayed with him until he died, which was about five minutes later and before the police arrived. He fixes the time very definitely as shortly after noontime, because a minute or two before the accident he was quite startled when the air raid siren went off just as he was passing the siren. A careful evaluation of the testimony supports the conclusions below that little weight should be given to testimony of a witness for the respondent that the decedent had gone back to the garage and visited for awhile before starting for home.
An autopsy was performed on the body about two hours after death. The certification by the medical examiner indicates that the autopsy showed, among other things, "occlusive coronary arteriosclerosis." The "autopsy protocol" states, under item "15. Coronary Arteries"; "* * * one area of complete occlusion in upper anterior descending branch. Another area of occlusion in a large branch of the circumflex near its origin. No thrombi." The "primary cause of death" is given as "coronary arteriosclerosis, severe, occlusive." There was no involvement of the heart muscle.
The appellant did not press her compensation claim in the original instance, but instituted a common law action on
the theory of Szabo v. Pennsylvania R. Co., 132 N.J.L. 331 (E. & A. 1945), alleging that the respondent was negligent in failing to provide medical treatment for its employee in an emergency and should have put in the reach of such stricken employee medical care which could have saved his life or possibly avoided further bodily harm. The trial court directed a verdict in favor of the respondent in that action. The same proofs put in in that case are part of the record in the compensation hearing below and here.
It is perfectly clear from the record that it was never brought to the attention of the dispatcher that the decedent was seriously ill. All that the dispatcher knew was that he was sweating and having chills; neither was he aware that the decedent was undergoing a coronary attack of a severe nature, as was later indicated by the autopsy, nor was ...